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2021 DIGILAW 632 (RAJ)

Kaushal Mutha v. Jai Narain Vyas University

2021-03-17

PUSHPENDRA SINGH BHATI

body2021
ORDER 1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court. 2. The present writ petitions are common to the extent that all pertains to Jai Narain Vyas University, Jodhpur and the petitioners herein are contesting their right to give their respective examinations. Counsel for the petitioner submits that looking into extreme hardship caused to students due to pandemic Covid-19, an extra-ordinary situation has arisen leading to disturbance in academic schedule, resulting into all of the students coming to this Court for saving their academic year. Counsel for the petitioner submits that they are students of B.Com, B.A., B.Sc, M.Sc, M.A., LLB and BBA LLB. 3. The basic contention of counsel for the petitioner is that due to extreme pandemic condition lock-down, curfew/restriction, the petitioners could not fill-in their examination form in time, thus, were deprived of their right to appear in their respective exam and upon approaching this Court, this Court permitted them to appear in exam provisionally without creating any right in their favour. Counsel for the petitioner submits that outcome of their appearing in respective examination under the interim order is that they ought to be given benefit of being promoted according to their results. Counsel for the petitioner further submits that right to education is a fundamental right even in higher education and any deviation from academic year would result into extreme hardship and disturbance to the career of petitioners. Counsel for the petitioners have relied upon the following judgments passed by this Court in :- Gulabchand Vs. University of Jodhpur & Ors. (S.B. Civil Writ Petition No. 1979/1984, decided on18.01.1985); Smt. Neetu Choudhary Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.6556/2005, decided on 01.12.2006); Nitesh Kumar Goyal & Ors. Maharaja Ganga Singh University, Bikaner & Ors.(D.B. Civil Special Appeal (W) No.244/2016, decided on 25.05.2016); Niharika Tak Vs. The University of Jodhpur (D.B. Civil Special Appeal No.72/1981, decided on 12.01.1983); Shilpi Lodha Vs. Registrar, National Law University (S.B. Civil Writ Petition No.2354/2017, decided on 22.05.2017). 4. Counsel for the respondents opposed the writ petitions on the count that as per Ordinance 82 R/w Ordinance 111, the fee deposition schedule is prescribed alongwith late fee. Counsel for the respondents relied upon the judgment of this Court in Ruchit Ojha Vs. Registrar, National Law University (S.B. Civil Writ Petition No.2354/2017, decided on 22.05.2017). 4. Counsel for the respondents opposed the writ petitions on the count that as per Ordinance 82 R/w Ordinance 111, the fee deposition schedule is prescribed alongwith late fee. Counsel for the respondents relied upon the judgment of this Court in Ruchit Ojha Vs. Jai Narain Vyas University, Jodhpur & Anr., (S.B. Civil Writ Petition No.4990/2020, decided on 02.03.2021), relevant portion whereof reads as follows :- "7. Learned counsel tried to justify filing of the subsequent/present petition by arguing that since the University itself has decided to promote the students to next class, the petitioner had preferred the writ petition in a bid to avail such opportunity. 8. In considered opinion of this Court, the notification dated 20.6.2020 nowhere requires any application form to be filled-in by the student. 9. The petitioner's right of submitting application form has earlier been adjudicated and decided by this Court. The writ petition was withdrawn when this Court was not inclined to grant any indulgence to the petitioner. 10. In earlier writ petition, the petitioner had sought an interim direction to allow him to sit in the examination of II year when one paper was already over and petitioner had not even filled the examination form. 11. In the facts of the present case filing of fresh petition is a clear abuse of the process.12. The writ petition is therefore, dismissed, however, without any cost, considering that petitioner is a student. " 5. Counsel for the petitioner submits that the judgment of Ruchit Ojha (supra) is not applicable to the case in hand as the reason in the petition included multiplicity of petitions whereas in the present case no such multiple petitions have been reported. 6. Upon hearing counsel for the parties at length and perusing record, this Court requested Mr. Deepesh Beniwal, Advocate for University to assist the Court by providing details in the form of tabular chart prescribing inter-alia of the stream/class of the students, date of registration, date of interim order, last date of submission of examination form, date of commencement of examination and date on which forms were filled by the students. Mr. Beniwal after considerable exercise has brought in all the details in a systematic chart, which needs to be reproduced to understand whole controversy and is annexed herewith as Annex.A. 7. Mr. Beniwal after considerable exercise has brought in all the details in a systematic chart, which needs to be reproduced to understand whole controversy and is annexed herewith as Annex.A. 7. After hearing counsel for the parties and perusing aforementioned chart as well as other documents, this Court is of the opinion that the petitioners can be classified in two categories :- - (1) firstly the students who got interim order in their favour before the date of commencement of examination and (2) secondly the students who approached this Court after the date of commencement of examination. 8. The aforementioned chart clearly reflects that the writ petitions at Sr. No.38, 48, 50, 54, 55, 56, 58, 61, 62, 67, 68 and 69 are those students who approached the Court before the date of commencement of examination. This Court is conscious of the fact that due to extreme covid conditions, UGC, State Government and the University were consistently revising their guidelines as per requirement of pandemic times. 9. The question whether the examination has to happen or not is a question which is to be decided by Expert Body and this Court does not wish to delve into the issue. The limited zone of intervention as sought by petitioners is as to whether they have deposited fees and sat in examination before the date of commencement of examination or if they have filled the examination form even after the date of commencement of exam. However, in the chart provided, most of the examinations were prior to the date of cancellation of examination i.e. 19.03.2020 and the University took decision to postpone the examination on 19.03.2020, in which, all exams after 20.03.2020 were directed to be postponed and were directed to be scheduled in future as per policy of UGC/State Government & University. 10. On perusal of chart, this Court finds that all the examinations except two in these matters took place before 19.03.2020. This Court is also aware of the fact that the Hon?ble Vice-Chancellor of the University exercised his emergent powers under Rule 12(5) to relax the date schedule of submission of examination form beyond the limit prescribed under the Ordinance. Interim orders are operating in all these matters and the petitioners are pursuing their respective Courses in accordance with the interim order passed by this Court. Interim orders are operating in all these matters and the petitioners are pursuing their respective Courses in accordance with the interim order passed by this Court. This Court has full sympathy with all the students before it but certainly sympathy cannot extend to a positive order unless the petitioner himself was aware, awake and conscious to his academic schedule, particularly, the examination schedule. This Court, thus, finds itself unable to intervene in favour of students, who did not fill examination form even when date of first examination was over and the first examination was over before decision of postponement of examination. However, those students who were aware and awake of their academic schedule, though, running late and took the Course and approached this Court before the date of commencement of examination and have appeared in pursuance of interim order passed by this Court ought to be protected as they shall complete their schedule for academic examination. 11. For the students who have approached this Court before the commencement of examination and have given their their examination in pursuance of interim order passed by this Court needs to be protected because it is only administrative decision regarding fees, which the student has to overcome and it not a decision which would affect merits of students or the academic curriculum of the University. However, the benefit cannot be extended to the students whose first examination took place and thereafter they approached this Court for continuance of examination scheduled for them, though, they also got interim order in their favour. Thus, all these writ petitions are disposed of while allowing writ petitions No.3446/2020, 5009/2020, 5240/2020, 5430/2020, 5599/2020, 5612/2020, 5686/2020, 5694/2020, 5891/2020, 7613/2020, 8885/2020, 9598/2020 (Sr. Nos. 38, 48, 50, 54, 55, 56, 58, 61, 62, 67, 68 and 69) as these students approached this Court and were protected by this Court by interim order before the date of commencement of examination and before the examination actually took place and their respective results shall be declared by the University and they shall be promoted to the next academic session while treating them as having filled-in the examination fee in time. 12. The writ petitions no.5663/2020, 3816/2020, 3851/2020, 3852/2020, 3860/2020, 3989/2020, 3998/2020, 4140/2020, 4979/2020, 4980/2020, 4993/2020, 5011/2020, 5293/2020, 5347/2020, 5360/2020, 5684/2020, 5687/2020, 5688/2020, 5691/2020, 5950/2020, 7147/2020, 7389/2020, 5691/2020, 4979/2020 (Sr. 12. The writ petitions no.5663/2020, 3816/2020, 3851/2020, 3852/2020, 3860/2020, 3989/2020, 3998/2020, 4140/2020, 4979/2020, 4980/2020, 4993/2020, 5011/2020, 5293/2020, 5347/2020, 5360/2020, 5684/2020, 5687/2020, 5688/2020, 5691/2020, 5950/2020, 7147/2020, 7389/2020, 5691/2020, 4979/2020 (Sr. Nos.37, 39, 40, 41, 42, 43, 44, 45, 46, 47, 49, 51, 52, 53, 57, 59, 60, 63, 65, 66, Sr.No.1 supp. list & Sr. No.2 supp. list) are dismissed because the petitioners therein approached this Court after the date of commencement of examination and did not give the first examination. The counsel for the respondent informed us that even fresh scheduled examination excludes the first paper which was pre 19.03.2020. Thus, for rest of the papers the examination shall be conducted and the students will be governed by the decision taken by the University. The examination fees submitted by the petitioners shall be adjusted against the future examination form only and if the student filled the form for the coming academic year. 13. The precedent law cited by both the parties have been taken into consideration. The application for declaration of result stands disposed of accordingly. The stay petitions also stands disposed of accordingly. SBCWP No.7141/2020 (Sr. No.64) : As far as writ petition no.7141/2020 is concerned, though, the petitioner approached this Court after first examination and had an interim order dated 13.08.2020 in his favour whereas the first paper took place on 16.03.2020 but he admittedly filled his form on 13.01.2020, which is much before the first paper, therefore, his writ petition is allowed in the same terms as that of writ petition no.3446/2020.